Le Thi Ninh v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 1120/2018

[2021] HKCFI 199

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1120 OF 2018

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only; or
	consideration of the documents and oral submissions by the applicant in open court.

Order by Deputy High Court Judge C P Pang:

Leave to apply for judicial review be refused.

Observations for the applicant:

Introduction

1.This is an application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) confirming the decision of the Director of Immigration (“the Director”) refusing the applicant’s claim of non-refoulement protection.

2.The applicant, born in 1971, is a national of Vietnam.  On 17 May 2016, she surrendered herself to the Immigration Department claiming that she had entered Hong Kong unlawfully via Mainland China.  She then lodged a non-refoulement claim and was subsequently released on recognizance.

3.The facts of the case and the basis for the applicant’s non-refoulement claim are summarized at para [22-32] of the decision of the Board.  Put simply, the claim was based on the fear that, if refouled, the applicant would be harmed or even killed by her creditor.  She claimed that in April 2014 she borrowed 200 million VND from Ms Ngoc to expand her fish selling business.  She could not pay the interest and principal since May 2015.  Her creditor on various occasions reminded her to repay the loan, and on the last few occasions, the creditor accompanied by her subordinates threatened to kill her if she did not repay the loan.  She did not report the matter to the police as she believed they would not help her.  In fear that she would be harmed by her creditor, she left Vietnam for Mainland China on 15 May 2016 and sneaked into Hong Kong by boat later.

The Director’s decision

4.By a notice of decision dated 10 March 2017, the Director rejected the applicant’s non-refoulement claim on all applicable grounds for reason that the claim was not substantiated.  The Director found there were no substantial grounds for believing that there would be any real and substantial risk of the applicant being harmed or killed by her creditor.  Moreover, state protection and internal relocation are available to the applicant.  The decision covered torture risk^[1], BOR 2 risk^[2], BOR 3 risk^[3], and persecution risk^[4].  The applicant lodged an appeal/ petition to the Board against the Director’s decision.

The Board’s decision

5.The applicant attended a hearing before the Board on 31 January 2018.

6.By a decisiondated 18 May 2018, the Board rejected the appeal/ petition confirming the Director’s decision.  The Board’s decision covered all applicable grounds.

7.The Board gave detailed reasons for rejecting the applicant’s claim at para [33-52] of its decision.  In a nutshell, the Board accepted the asserted primary events that the applicant was threatened by Ngoc as she was unable to repay the loan she borrowed.  The Board however was not satisfied that she would be at risk of being subjected to serious threats or violence for this reason if she returns to Vietnam.  The Board reasoned that despite the threat to kill her, she was still able to remain at home and continue with her jobs without facing harm.  It found that her evidence at the hearing that she heard rumours that Ngoc had hired triad members to kill her was vague and unconvincing.  Her evidence was ultimately to the effect that she could return to Vietnam to deal with the loan and she might be able to sell her house to repay it.  Her statement did not indicate that she fears being harmed if she returns to her country.  Her concern is that she is still liable for the debt rather than any fear of harm.  In the circumstances, the Board found that the risk of harm at the hands of her creditor was very low.  In any event, she would be able to obtain the assistance of the police, and she could safely relocate elsewhere in Vietnam [37-41].

8.Accordingly, the Board dismissed the applicant’s appeal on all applicable grounds.

Application for leave to apply for judicial review

9.The applicant filed a Form 86 on 19 June 2018 for leave to apply for judicial review of the decision of the Board.

10.In the Form 86, the applicant did not set out any grounds for the relief sought.  In her affirmation in support, she repeated her claimed fear of harm by her creditor.  She raised a new complaint that she could be put in jail under the offence of “Fraudulence” if her creditor would sue her. 

Discussion

11.The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.  In particular, the role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board.  Assessment of evidence and COI materials, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director.  The court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board.

12.When the applicant pursued her appeal to the Board, the Director’s decision was superseded by the Board’s decision and is no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549.  Therefore, while the court examines the decisions of the Director and the Board, it is unnecessary to delve into the decision of the Director.  This Observations for the Applicant will only focus on discussing the latter’s decision.

13.In the present case, the Board did not take issue with the applicant’s asserted primary facts.  It however disagreed with the applicant on the assessment of risk flowing from such events.  Taking into account all the relevant circumstances, it rejected the applicant’s claim based on its assessment of the risk of harm as well as its findings on availability of protection by the police and the viability of internal relocation.

14.As mentioned above assessment of evidence, the risk of harm, and availability of state protection as well as internal relocation are primarily within the province of the Board and the Director.  This court will not interfere with the decisions unless there is a public law ground for the court to do so.

15.The complaints raised by the applicant in her affirmation contained nothing to demonstrate any procedural irregularity, unfairness or unreasonableness of the Board.  The new complaint that she might be put in jail for fraudulence was a bare assertion without evidence in support, nor was it raised before the Director and the Board.  The new complaint is devoid of merit.  There is no reasonably arguable basis to challenge the Board’s findings.

16.Indeed, the applicant’s claim is extremely weak.  Even on her own account, the alleged past ill-treatment was of low intensity and frequency. She was not harmed at all by her creditor.  The treatment she received came nowhere near the level of severity required by law to constitute torture or CIDTP to warrant international protection.  The decisions of the Director and the Board decision are wholly reasonable.

17.Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law, irrational findings, or procedural unfairness in their decisions.  Nor do I see any failure on their part to apply high standards of fairness.

Disposition

18.For the reasons given, there is no prospect of success in the applicant’s intended application.  Accordingly, I refuse to grant leave for judicial review.

Dated the 28^th day of January 2021

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1